There are plenty of reasons the U.S. Supreme Court should reject the petition filed Wednesday by attorneys for the State of Mississippi, who are requesting the Court overturn a federal appeals court decision blocking Mississippi’s anti-choice law that requires providers have admitting privileges at a nearby hospital or face criminal penalties.
For starters, the order keeping the state’s last remaining clinic open is preliminary while the lawsuit challenging the law proceeds. If the Roberts Court is considering closing the only remaining abortion clinic in Mississippi, hopefully the justices would wait until there’s at least a trial record detailing the pseudo-science propping up these regulations before stepping in.
With the Obamacare subsidies case just around the corner for the Roberts Court, there is, once again, a partisan spotlight shining on the Court and its role in the U.S. health-care system.
It would be politically apt, especially for a chief justice whose tenure just hit the ten-year mark and is mindful of his legacy, for the Court to dodge another high-profile case at this time. The conservative wing of Justices Scalia, Alito, and Thomas can fire off some frothy dissent of the denial of review, which Roberts can join for political cover. Meanwhile, the clinic would remain open while the trial proceeds, appeasing the liberal wing of the Court. Everybody wins. Or something close to that.
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Despite all the reasons the Roberts Court should not step into the fight over hospital admitting privileges in Mississippi, the state’s petition for review, submitted by Democratic attorney general Jim Hood, might be too much for the Court to resist.
The petition opens with the kind of pearl-clutching over non-existent abortion-related injuries that have come to populate not just anti-choice talking points, but state legislatures across the country, thanks to a cadre of hired guns testifying in support of measures like Mississippi’s.
“Concerned by highly publicized reports of deaths and injuries involving abortion facilities across the country that raised serious doubts as to the safety of women undergoing abortion procedures, the legislatures in numerous states, including Mississippi, increasingly began requiring doctors performing abortions to hold admitting privileges at local hospitals,” the petition’s first substantive sentence reads.
But if Mississippi’s petition opens by invoking the fear of more Kermit Gosnells lurking somewhere out there, it doesn’t linger there long. It shifts instead to the supposed horrors that will come if the Roberts Court allows the Jackson’s Women’s Health Organization to exist “beyond the regulatory reach of the State,” by not enforcing the state’s TRAP (targeted regulation of abortion providers) law.
Like so many of the anti-choice movement’s attempts to curtail reproductive rights, Mississippi’s admitting privileges law is not about protecting the safety of patients—a link Judge Richard Posner of the Seventh Circuit described as “feeble” when striking down as unconstitutional Wisconsin’s admitting privileges law.
Unlike other states like Texas, which have also enacted an admitting privileges requirement, Mississippi had for several years prior to passing its TRAP law required doctors performing outpatient procedures other than abortion to get admitting privileges.
This difference, attorneys for the Mississippi argue, makes this a compelling case for the Roberts Court to take up. Mississippi may be the first state to try and close its only abortion clinic, but it won’t be the last.
When the Roberts Court took its first pass at admitting privileges in the challenge to Texas’ HB 2, the issue was whether states could create swaths of reproductive health-care deserts within their borders, thereby forcing patients to travel hundreds of miles to access care, not whether states could constitutionally target for closure the only abortion clinic within its borders.
Patients in Mississippi, according to the state’s attorneys, must already travel great distances because there is only one clinic, so the TRAP law, if enacted, would change almost nothing. Instead, the attorneys argue that the Roberts Court should reverse the Fifth Circuit ruling and let the law go into effect while the trial proceeds, and the lower court can consider the availability of abortion services in metropolitan areas of states adjoining Mississippi, such as Baton Rouge, New Orleans, Mobile, and Memphis.
And it is this tension—between the fundamental right of a woman to control her reproductive destiny and the power of the state to prevent her from doing so at all costs—that the Roberts Court will, at some point, have to wade into. In other words, if the right to an abortion is a federal right, does that mean states are required to keep at least one clinic open? According to the attorneys for the State of Mississippi, and to Judge Garza of the Fifth Circuit, who dissented in the Mississippi case, the answer to that question is a resounding “no.”
Normally a question like the one between the fundamental rights of patients and the power of the state is the kind of wonky constitutional law word problem I adore. But in this case, there is simply too much on the line. This case is not just a constitutional fight between the rights of patients and the power of the state. This is a case that, if anti-abortion activists get their way, will drive reproductive health care in Mississippi back into the shadows. And we all know those activists won’t stop with Mississippi.
Attorneys for the State of Mississippi point the Roberts Court to the existence of clinics in places like Mobile and Baton Rouge as proof that patients in need of care can go somewhere closer than Jackson if they want. This is of course the ultimate false choice, as lawmakers in Alabama and Louisiana are still pursuing their own TRAP laws designed to close as many clinics in their states as their respective laws will allow.
And with six other states with only one clinic remaining, this is a false choice reproductive rights advocates cannot let stand unchallenged.
This is especially true when the anti-choice right frames this issue, like they did here, as creating a “bright line test” where states “lose” the power to regulate abortion clinics.
“The Fifth Circuit’s bright-line test effectively places the Clinic beyond the regulatory reach of the State, granting [the Jackson’s Women’s Health Organization] a perpetual, unregulated existence,” attorneys for the State of Mississippi wrote. “The Fifth Circuit’s decision comes perilously close to requiring the State of Mississippi to provide a means by which women seeking abortion may exercise that right.”
Anti-choice activists have turned to this kind of through-the-looking glass thinking, in which a hyper-regulatory environment for abortion providers that results in clinic closures like Mississippi is, in their reality, a regulatory environment that is “dangerously close” to public financing of abortions.
“There is no reason for the U.S. Supreme Court to step into this case,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement following Mississippi’s filing. “This law is an underhanded attempt by anti-choice politicians to close the state’s only abortion clinic. Mississippi cannot make a run-around the constitutional guarantees of Roe v. Wade with a sham health and safety law.”
Reproductive rights advocates will have an opportunity to respond to the State of Mississippi’s petition. There is no guarantee the Roberts Court will agree to hear the case. Either way, Mississippi’s petition paints a distressing picture of the abortion rights showdown headed to the Supreme Court.